Jury returns verdict in second Bellwether Hernia Patch Trial

A federal jury in Rhode Island awarded $1.5 million to a North Carolina man and his wife in the second bellwether trial in the Kugel mesh hernia patch litigation. The jury awarded $1.3 million in compensatory damages to Christopher Thorpe for severe abdominal injuries caused by broken hernia patch rings, and $200,000 to his wife, Laure, for loss of consortium. The judge did not allow punitive damages to go to the jury. Jurors found that Davol, a Rhode Island division of C.R. Bard, had negligently designed the Composix Kugel Mesh hernia patch and failed to provide adequate warnings about its risks, causing Christopher Thorpe’s injuries.

A 52-year-old manufacturing supervisor, Mr. Thorpe suffered an abdominal wall abscess and fistula when two plastic rings on his hernia repair patch broke. About 2,500 hernia patch lawsuits are pending in state and federal court in Providence. The product was recalled from 2005 through 2007. Davol now uses a bio-absorbable ring instead of a plastic one. In April, jurors in the first trial in the federal multi-district litigation consolidated in Providence found that although the hernia repair patch was negligently designed, it didn’t cause the Plaintiff’s injuries. Donald Migliori, lead Plaintiffs’ counsel in both trials, said the first trial involved a “ring buckle” rather than a broken ring, adding:

It’s a major difference. The first jury did find that while the device was defective [because it buckled], the [Plaintiff's] injury was not related to the defect.

In the Thorpe case “the jury found that Davol failed to warn of the dangers and negligently designed the product, which was the cause of the injuries. This verdict is particularly significant, because the verdict form included a question that seems to be biased towards the Defense. The question, which was imposed by the trial judge, asked jurors whether the Plaintiff’s injury was caused by his surgeon using the mesh patch “in a manner contrary to any express and adequate instructions or warnings which [the surgeon] knew or should have known were delivered with the … patch.”

Defense lawyers tried throughout the trial to blame the surgeon for Mr. Thorpe’s injuries. They tried to convince the jury that the doctor folded the device when he put it in. The problem is the device is designed to spring open. If it didn’t lie flat, it’s the device’s fault, not the doctor’s.

Davol’s own documents were used during the trial to show that the company acknowledged the product was defectively designed. Davol, after the recall, said in a document, “this is what we did in designing the product wrong.” Interestingly, one of the Defense’s engineering experts was paid $600,000 for his testimony as an expert in the case. Both Mr. & Mrs. Thorpe testified about Christopher’s injuries. Mrs. Thorpe had to clean an open wound in her husband’s abdomen three times a day for a year.

The next federal trials won’t begin until early next year. A trial in state court in Rhode Island is scheduled to begin October 18th. Lawyers who handled the case were: Donald Migliori, who is Plaintiffs’ liaison counsel in the MDL, and is with Motley, Rice in Providence, Rhode Island; and Ernie Cory of Cory, Watson, Crowder & Degaris in Birmingham. These lawyers did a very good job.